Bay Medical Center, Inc .

National Labor Relations Board - Board Decisions

May 24, 1976

224 N.L.R.B. 69 (N.L.R.B. 1976)

BAY MEDICAL CENTER, INC
Bay Medical Center , Inc. and Local No. 486 , Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Ind. Case
7-CA-12523
May 24, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on November 21, 1975, by
Local No. 486, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Ind., herein called the Union, and duly
served on Bay Medical Center, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 7, issued a complaint and notice of hearing
on December 9, 1975, against Respondent, alleging
that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and no-
tice of hearing before an Administrative Law Judge
were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on September 18,
1975, following a Board election in Cases 7-RC-
12687, 7-RC-12734, and 7-RC-12740, the Union
was duly certified as the exclusive collective-bargain-
ing representative of Respondent's employees in the
unit found appropriate;' and that, commencing on or
about November 17, 1975, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
December 22, 1975, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On January 9, 1976, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on January 23, 1976,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause why
i Official notice is taken of the record in the representation proceeding,
Cases 7-RC-12687, 7-RC-12734, and 7-RC-12740, as the term "record" is
defined in Secs 102 68 and 102 69(g) of the Board 's Rules and Regulations,
Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938 (1967),
enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151
(1967), enfd 415 F 2d 26 (C A 5, 1969), Intertype Co v Penello, 269 F
Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378 (1967), enfd 397
F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA
69
the General Counsel's Motion for Summary Judg-
ment should not be granted. On January 23, 1976,
Respondent filed a response to the General
Counsel's Motion for Summary Judgment although
no response to the Notice To Show Cause was re-
ceived.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
Motion for Summary Judgment Respondent in sub-
stance attacks the validity of the certification based
on its contentions (1) that the technical employee
unit found appropriate by the Board is inappropriate
because it is contrary to Board policy and the con-
gressional mandate against proliferation of units in
the health care industry, and (2) that the unit descrip-
tion is ambiguous and unworkable. Respondent
seeks to submit evidence on its contentions either in
a hearing or by brief and oral argument to the Board
and in the alternative seeks summary judgment in its
favor. In his Motion for Summary Judgment the
General Counsel contends that Respondent seeks to
relitigate the issue of unit appropriateness de-
termined in the underlying representation proceeding
and that no relitigation of representation case issues
may be had. We agree.
Review of the record, including that in the repre-
sentation proceeding, Cases 7-RC-12687, 7-RC-
12734, and 7-RC-12740, establishes that after a
hearing on unit questions the Regional Director
transferred the proceedings to the Board. In its brief
to the Board the Union contended, inter alia,, that
either separate units of technical employees at each
of Respondent's two facilities or alternatively a single
unit of all technicals at both facilities would be ap-
propriate. On the other hand, Respondent argued in
its brief, inter alia, that the technical units sought
were inappropriate because they constituted artificial
groupings which would severely fragmentize Re-
spondent's employees, but that an overall unit was
appropriate. After review of the record, including
briefs filed by all the parties,' the Board issued its
Decision, Order, and Direction of Election I on June
2
Briefs were also filed by the three intervenors (I) Local 79, Hospital
Employees' Division, Service Employees International Union, AFL-CIO,
herein called Local 79, (2) Local 688, Catering Industry Hospital Workers
and Bartenders Union, AFL-CIO, and (3) the Michigan Licensed Practical
Nurses Association
3 218 NLRB 620 (1975)
224 NLRB No. 14
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
18, 1975, in which it found, inter aha, that a single
unit of all technical employees at both facilities oper-
ated by Respondent was appropriate, including cer-
tain categories of employees whom the Respondent
would have excluded 4 The election was held on July
18, 1975 Challenges were determinative of the elec-
tion results Objections concerning the waiver of ini-
tiation fees by the Union were filed by Respondent
The Regional Director ordered a hearing on election
objections and challenged ballots At the hearing the
parties stipulated that all challenges be sustained ex-
cept six challenged ballots which were not sufficient
to affect the outcome of the election 5 On August 27,
1975, the Hearing Officer issued his Report and Rec-
ommendations on Objections to Election and Chal-
lenged Ballots in which he recommended that the ob-
jections be overruled and that the appropriate
certification be issued by the Regional Director since
the six sustained challenged ballots were not determi-
native Respondent filed exceptions to the Hearing
Officer's Report limited in substance to its conten-
tion that the certification should not issue and the
petitions should be dismissed because the technical
unit was inappropriate On September 18, 1975, the
Regional Director issued his Supplemental Decision,
Revised Tally of Ballots, and Certification of Repre-
sentative, overruling the objections, denying the mo-
tion to dismiss the petitions because the unit issues
were not relitigable, and certifying the Union since
the six unsustained challenged ballots were not deter-
minative On September 29, 1975, Respondent filed a
request for review reiterating its unit contentions By
telegram of November 11, 1975, the Board denied
review on the ground that the request raised no sub-
stantial issues warranting review
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues 6 which were or could have been litigated
in a prior representation proceeding
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence,' nor does it
4 On July 14, 1975, Intervenor Local 79 filed a motion for clarification of
decision contending that the Board's unit description was vague and not
definable as to which employees were to be considered ` technical On July
16, 1975, the Board by telegram denied the motion on the grounds that
issues raised therein could best be resolved through the challenge procedure
5 Local 79, which had also filed objections withdrew them at the hearing
6 See Pittsburgh Plate Glass Co v NL RB 313 U S 146, 162 (1941)
Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c)
7 Respondent requests reconsideration of the Board decision in the under
lying representation case citing American Hospital Management Corp
d/b/a/ Mad River Community Hospital, 220 NLRB 350 (1975) and St
allege that any special circumstances exist herein
which would require the Board to reexamine the de-
cision made in the representation proceeding We
therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding
In this proceeding , Respondent contends that it is
entitled to present evidence either at a hearing or by
brief and oral argument before the Board on the is-
sues raised by it We note that Respondent had a
hearing in the prior representation case and submit-
ted a brief to the Board on the unit issues it seeks to
raise in this proceeding and that it had stipulated to
the resolution of all determinative challenges We
therefore find its contention to be without merit as
evidentiary hearings are not required in unfair labor
practice cases and summary judgment against a re-
spondent is appropriate where, as here , there are no
properly litigable issues of fact to be resolved I Ac-
cordingly we shall grant the General Counsel's
Motion for Summary Judgment and deny the
Respondent ' s Motion for Summary Judgment
On the basis of the entire record , the Board makes
the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a nonprofit Michigan corporation with its
principal office and place of business at 1908 Colum-
bus Avenue, Bay City, Michigan, where it is engaged
in the operation of nonprofit hospitals providing
health care services at its Mercy and General Divi-
sions, the facilities involved in this proceeding Dur-
ing the 12-month period ending November 30, 1975,
a representative period, Respondent, in the course
and conduct of its business operations, received gross
revenues in excess of $500,000 for its hospital serv-
ices and purchased supplies valued in excess of
$50,000 of which supplies valued in excess of $4,500
were obtained directly from suppliers located outside
the State of Michigan
We find, on the basis of the foregoing, that Re-
Elizabeth s Hospital of Boston , 220 NLRB 325 (1975 ), as recent Board
hospital technical unit cases which support denial of the General Counsel s
Motion for Summary Judgment We do not agree These cases support the
appropriateness of technical units in the health care industry and the Board
in its unit determination considered the Respondents circumstances and
those of the health care industry Further, with regard to the Respondent's
contention concerning the unit description, these cases are consistent with
the unit composition determinations made by the Board in the underlying
representation proceedings herein In this connection see In 4, supra We
therefore deny Respondent s requests for reconsideration and for the oppor
tunny to fully brief the issues raised by those cases
8 The Woods Schools, 222 NLRB 1124 (1976) Locust Industries, Inc 221
NLRB 604 (1975)
BAY MEDICAL CENTER, INC
spondent is, and has been at all times material here-
in, an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert juris-
diction herein
II THE LABOR ORGANIZATION INVOLVED
Local No 486, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Ind, is a labor organization within the
meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A The Representation Proceeding
1 The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9 (b) of the
Act
All technical employees employed by Respon-
dent at its Mercy and General Divisions, Bay
City, Michigan, but excluding all other employ-
ees, guards, and supervisors as defined in the
Act
2 The certification
On July 18, 1975, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 7, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on September 18, 1975, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act
B The Request to Bargain and Respondent's Refusal
Commencing on or about September 25, 1975, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit Commencing
on or about November 17, 1975, and continuing at
all times thereafter to date, the Respondent has re-
fused, and continues to refuse, to recognize and bar-
gain with the Union as the exclusive representative
for collective bargaining of all employees in said
unit
71
Accordingly, we find that the Respondent has,
since November 17, 1975, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (I) of
the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce
V THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom, and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit See Mar-Jac Poultry Company, Inc, 136
NLRB 785 (1962), Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd 328 F 2d 600
(C A 5, 1964), cert denied 379 U S 817 (1964), Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd 350 F 2d 57 C A 10, 1965)
The Board, upon the basis of the foregoing facts
and the entire record, makes the following
CONCLUSIONS OF LAW
I Bay Medical Center, Inc, is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act
2 Local No 486, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Ind , is a labor organization within the
meaning of Section 2(5) of the Act
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 All technical employees employed by Respon-
dent at its Mercy and General Divisions, Bay City,
Michigan, but excluding all other employees, guards,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act
4 Since September 18, 1975, the above-named la-
bor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act
5 By refusing on or about November 17, 1975,
and at all tunes thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the Act
6 By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act
7 The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
mg of Section 2(6) and (7) of the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, Bay
Medical Center, Inc, Bay City, Michigan, its offi-
cers, agents, successors, and assigns, shall
I Cease and desist from
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Local No 486, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Ind, as the
exclusive bargaining representative of its employees
in the following appropriate unit
All technical employees employed by Respon-
dent at its Mercy and General Divisions, Bay
City, Michigan, but excluding all other employ-
ees, guards, and supervisors as defined in the
Act
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act
2 Take the following affirmative action which the
Board finds will effectuate the policies of the Act
(a) Upon request , bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay , wages , hours, and other terms
and conditions of employment , and, if an under-
standing is reached , embody such understanding in a
signed agreement
(b) Post at its Mercy and General Divisions, Bay
City, Michigan, copies of the attached notice marked
"Appendix " 9 Copies of said notice , on forms pro-
vided by the Regional Director for Region 7, after
being duly signed by Respondent 's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter , in conspicuous places, including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith
9In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading `Posted by Order
of the National Labor Relations Board shall read ` Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board'
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours , and other
terms and conditions of employment with Local
No 486 , International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers
of America , Ind , as the exclusive representative
of the employees in the bargaining unit de-
scribed below
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act
WE WILL, upon request , bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below , with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment, and, if an understanding is
BAY MEDICAL CENTER, INC 73
reached, embody such understanding in a signed City , Michigan, but excluding all other em-
agreement The bargaining unit is ployees, guards, and supervisors as defined in
All technical employees employed by Respon -
the Act
dent at its Mercy and General Divisions, Bay BAY MEDICAL CENTER, INC